Guest Post: Crimea Secession Claims, Right to Self-Determination and the Kosovo Precedent

Gaiane Nuridzhanian is an LL.M. candidate at the University of Cambridge specializing in public international law. She has worked at the Registry of the European Court of Human Rights and was subsequently engaged in representing the applicants in cases against Ukraine before the ECtHR. She is also a student editor here at the International Law Observer.

The crisis in Ukraine started in November 2013 with the protests against the government’s decision to refuse to sign the association agreement with the EU. In January 2014 it was followed by violent clashes between protesters and governmental forces and finally lead to the removal of the President Yanukovych and formation of a new government. Recently, the crisis has been exacerbated by the Crimea’s secession from Ukraine.

The situation in Ukraine and in particular in Crimea has been widely discussed in international blogosphere lately. A recent post in EJIL: Talk! by Christian Marxen addresses the question of Crimea’s secession and declaration of independence. Professor Robert McCorquodale in his brief analysis in Opinio Juris discusses the Crimea’s situation in the context of the right to self-determination.

The present post will consider whether Crimea enjoys the right to secession and self-determination under the Ukrainian domestic legal framework and international law and will compare the situation in Crimea with the Kosovo precedent.

Factual background

On 6 March 2014 the Crimean parliament decided to hold a referendum concerning the status of Crimea and its secession from Ukraine in order to join the Russian Federation.

Given the strong Russian presence in Crimea at the moment – in the form of military forces and militia, pro-Russian propaganda and local authorities – the results of the referendum were not difficult to predict. At the referendum held on 16 March 2014 about 96,6 % of the Crimean population voted for joining Russia.

The Ukrainian central authorities have denounced the Crimean referendum. The acting President declared the resolution of the Crimean parliament of 6 March 2014 unlawful and void due to the Crimean authorities’ overstepping the limits of powers granted to it by the legislation. For the same reasons the Constitutional Court of Ukraine reached the conclusion that the referendum was contrary to the Constitution of Ukraine.

While the West has been struggling to compel the Russian Federation to let go of Crimea and cease its intervention with the territorial integrity and sovereignty of Ukraine, the Crimean parliament took another step towards its secession from Ukraine. Several days before the referendum, on 11 March 2014, Crimea adopted the declaration of independence the lawfulness of which was immediately recognized by the Russian Federation.

The text of the declaration contains reference to the provisions of international law entitling peoples to self-determination as well as to the advisory opinion of the International Court of Justice (ICJ) concerning Kosovo (Kosovo Advisory Opinion), according to which a unilateral declaration of independence is not in contradiction with international law. According to the declaration, should the results of referendum favour the Crimea’s accession to the Russian Federation, the former is to be regarded as a sovereign and independent entity. Crimea in its capacity of a sovereign and independent republic will subsequently join the Russian Federation on the basis of an international agreement.

The Ukrainian central authorities have reacted to this move by a Presidential Decree suspending the effect of the declaration of 11 March 2014. Nonetheless, on 18 March 2014 the Russian Federation and Crimea concluded the agreement on the latter’s accession to Russia. The preamble of the agreement referred to the principle of self-determination as enshrined in the UN Charter. According to the agreement, Crimea and the city of Sebastopol were granted status of federal entities within Russia.

It must be reminded that at the beginning of the 1990ies in the process of dissolution of the Soviet Union, Crimea had in fact made an attempt to declare itself a sovereign state. In September 1991, it adopted a declaration on state sovereignty of Crimea. The adoption of the constitution proclaiming Crimea a sovereign state within the territory of Ukraine followed in 1992. The relations with Ukraine were to be defined on the basis of a treaty. During the following years, the Ukrainian central government adopted a number of legislative acts which suspended and finally abolished the 1991 declaration of sovereignty and the 1992 constitution. The central authorities were not satisfied with Crimea having a status of sovereign state within Ukraine and were aiming at assigning to Crimea the status of autonomy, which was eventually achieved in 1998. The constitution of the Autonomous Republic of Crimea was approved by a legal act adopted by the central government. It declared Crimea to be an integral part of Ukraine with its own authorities competent to act within the powers granted to it by the Constitution of Ukraine, the latter prevailing in case of discrepancies with the local acts adopted by the Crimean authorities.

No right to secede under the domestic legal framework

Crimea holds a status of an autonomous republic within Ukraine. Despite the existence of an autonomy in its administrative structure, Ukraine, as proclaimed by its Constitution, is a unitary state with sovereign powers vested in the peoples of Ukraine and Crimea as an integral part of its territory.

In its decision announcing the intention to join the Russian Federation and to hold a referendum on the matter, the Crimean Parliament referred to the Constitution of Crimea, a document which regulates the status of the peninsula as an autonomous entity and the powers of its governing bodies. The Constitution of Crimea also touches on the issues of territorial changes. Any changes concerning the Crimean territory may be introduced with due regard to the local referendum and the decision of the Crimean parliament subject, however, to compliance with the Constitution of Ukraine. While this provision constitutes a doubtful basis for secession, a clear answer comes from the Constitution of Ukraine. It upholds the principle of territorial integrity and inviolability of its borders and proclaims that any changes with regard to the territory of Ukraine shall be made exclusively on the basis of a national referendum. It may be easily foreseen that according to both documents, the Constitutions of Ukraine and Crimea, any inconsistencies between the two are to be resolved in favour of the former. Under the domestic legal framework, the Crimea thus does not possess a right to secede from Ukraine and any decision taken by its local authorities or by a local referendum to that effect are in violation of the Ukrainian Constitution.

No right to secede under the international law

International law will not be much of assistance to Crimea in its longings to leave Ukraine either. While it is true that there is no specific rule prohibiting such unilateral secession, international law recognizes no right to unilateral secession and tends to side with the protection of the territorial integrity and stability of state borders.

The only exceptional circumstances under which the sanctity of the territorial integrity of a state may be trumped in favour of separation arises in the context of self-determination. It is now the prevailing view that the right to self-determination in and of itself does not amount to a right to secede. However, it may entitle the entity to leave the parent state under certain conditions. These circumstances were articulated by the Supreme Court of Canada in Reference re Secession of Quebec(1998), an advisory opinion concerning the existence of the right to unilateral secession under national and international law. Such right exists in the situation of former colonies and oppressed people (for instance, those under military occupation). It can also be exercised by a group which is denied meaningful access to government to pursue their political, economic, social and cultural development. The group seeking separation on these grounds may, however, resort to the secession as a remedy of last resort. This concept has been often referred to as ‘remedial secession’.

The issue of entitlement to secede in the context of self-determination came out about a decade later in connection with the unilateral declaration of independence by Kosovo. Although in its advisory opinion concerning accordance with international law of the unilateral declaration in respect of Kosovo, the ICJ did not address the questions of self-determination, the concept of remedial secession was readily invoked by many states in the proceedings before the Court. For instance, Russia argued in its submissions that self-determination can be exercised within the system of an existing state and only in extreme circumstances of continuing violence against a group and after exhaustion of all the other means to settle the conflict may an entity claim unilateral secession.

Neither of the exceptional circumstances justifying the remedial secession are present in the case of Crimea. It is needless to say that a colonial context is inapplicable in this situation. Neither has there been any oppression, domination or large-scale and continuing breach of rights in respect of the Crimean population.

The only action which may be interpreted as encroaching on the rights of the Crimean people and which recently fueled aggravation of anti-Ukrainian sentiments is the central parliament’s decision to abolish the 2012 Language Act, a piece of legislation favouring and extending the scope of use of regional languages such as Russian. In any event, the alleged breach of rights resulting from limitations of the use of language may not be said to amount to continuing blocking of the political, economic, social and cultural development of the group or to gross human rights violations. Furthermore, if the language issues were the genuine concern, these differences could have been settled internally between the central government and the Crimean authorities, for example, by extending the Crimea’s autonomy. The more so, since the intention of the acting President to block abolishment of the 2012 Language Act evidences readiness of the central authorities to negotiate and make concessions.

However, the language issue is solely one aspect of the multi-facetted problem of the relationship between Crimea and the rest of Ukraine. The Crimea’s desire to join Russia is the result of the continuing interplay of various factors, among them the historic background as well as longstanding Russian influence in the region. The situation is further complicated by the presence on the territory of the peninsular of the Crimean Tatar minority who have clearly expressed their support for the newly formed Ukrainian government, who are citizens of Ukraine and are subject to protection by the Ukrainian State.

Kosovo precedent and Crimean secession

In their submission before the ICJ concerning the Kosovo case some states such as the United Kingdom and Germany went out of their way to stress that the Court was dealing with a sui generis situation. This was partly due to the historical background and the developments that led to Kosovo being put under UN administration, and partly to avoid application of a Kosovo precedent in future cases.

The Kosovo case has, however, backfired in Crimea. As mentioned above, the Crimean declaration of independence of March 2014 refers, inter alia, to the ICJ’s advisory opinion on Kosovo and its findings that a unilateral declaration of independence was not contrary to international law. Recognition of the declaration as lawful by Russia only testifies to the double standards and inconsistency in the latter’s approach – Russia pleaded against the unilateral secession in the Kosovo case before the ICJ, it never recognized the declaration of independence of Kosovo made in 2008 and remains strongly opposed to its independence. Notwithstanding its position on Kosovo, Russia readily accepts the Crimean secession.

It is not disputed that a unilateral declaration of independence per se is not contrary to international law. The advisory opinion of the ICJ was largely limited to this specific issue and did not address the effects of such a declaration. However, in reality the act of a unilateral declaration of independence accompanied by the unilateral secession inevitably raises the question of the lawfulness of the latter. Despite the apparent ease with which the Kosovo opinion may be invoked to support the Crimean declaration of independence, it is proposed that one looks at the Kosovo precedent as a whole (beyond the scope of the ICJ findings) and identifies the features distinguishing the Kosovo precedent from the situation in Crimea.

Although the issue of self-determination was not considered by the ICJ in its advisory opinion, Kosovo essentially represents a case of remedial secession. The UN through its officials entrusted with developing a settlement plan for Kosovo eventually recognized that violence and gross human rights violations to which Kosovo was subjected during the time when it was a part of Serbia ruled out the option of putting Kosovo back under Serbia’s jurisdiction. A number of governments such as those of the United Kingdom and Germany in their submissions to the ICJ in the Kosovo case also argued it is a right to secede due to inability to exercise the right to self-determination within the parent state.

The eventual declaration of independence of Crimea and its unilateral secession is the result of an alleged exercise by its people of the right to self-determination, as claimed by the declaration of independence of March 2014. It has already been shown above that Crimea is not entitled to self-determination by way of secession either under the domestic legal framework or under international law. It is also not a case of remedial secession.

In the Kosovo advisory opinion the ICJ mentioned that a declaration of independence is considered illegal if it is connected to the use of force or other egregious violations of norms of general international law, in particular those of peremptory character. No such breach of jus cogens norms was attached to the act of the unilateral declaration of independence of Kosovo. If one is to take a formalistic approach to the Crimean situation, no breach of international law has been committed by the Crimean authorities seeking the secession. However, the fact that the declaration of independence was made with the specific purpose of joining the Russian Federation, which is ready to annex the territory of a foreign state despite the objections of the central government and the fact that Russia has committed a military intervention into the territory of Ukraine and is continuing to support the armed forces which have effectively occupied the peninsula suggest the contrary. It can be argued that the declaration of independence of Crimea was not the expression of the will of the Crimean population (as the declaration of independence of Kosovo was considered to be an expression of free will of its peoples), but was closely connected to the military intervention of a foreign state which has also instigated the separatist movement for the purpose of annexing the territory in question.

When comparing the Kosovo and Crimea situations, it is impossible to ignore the historical background and political circumstances surrounding them. As it has already been mentioned, the longstanding conflict, including of violent nature, between Kosovo and Serbia caused the international community to intervene and decide to put Kosovo under a special UN-administered regime. This conflict also rendered impossible settling the Kosovo situation by way of its reintegration into Serbia. Due to these circumstances together with the fact that the declaration of independence constituted a genuine expression of the will of the population of Kosovo, the international community reacted by according it a rather generous rate of recognitions (around 110 states).

The Crimean situation is substantially different. There has never been any violence or gross human rights abuses directed by the central government towards the Crimean population. No attempts were made by Crimea to settle internally any claims with regards to its right to self-determination with the central government. Finally, given the current military presence and support of the foreign state in whose favour the secession is actually purported, the genuineness of the declaration of independence remains highly questionable.

In summary, under the present circumstances, Crimea is not entitled to unilateral secession. The domestic constitutional framework does not confer such a right on the autonomy. The conditions justifying the exercise of the right to self-determination by secession under international law are not present in the case of Crimea. Finally, although international law does not prohibit the act of declaring independence, there are essential differences both of a legal and factual nature which distinguish the situation of Crimea from the case of Kosovo, whose unilateral declaration of independence was considered to be in conformity with international law by the ICJ and triggered recognition of over one hundred states. Such factors as a historical background of the relationship between Crimea and the central government in Ukraine as well as Russia’s military presence in Crimea following an intervention argue for regarding the process of Crimea’s secession as contrary to international law.

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